Job Applicants and the ADA

By Amy Epstein Gluck

Does the Americans With Disabilities Act (ADA) apply to job applicants as well as employees? Yes, indeed!

One employer, an international customer service support provider for electronic devices in Nashville, Tennessee, just learned this lesson as it paid up $50K in a settlement with the Equal Employment Opportunity Commission (EEOC) for rejecting a paraplegic job applicant.

Here’s how the scenario rolled out according to the EEOC’s lawsuit: the company sought to hire a bunch of customer care representatives; the plaintiff applied for this position online and was qualified for the position. Excited about the plaintiff’s application—she was allegedly qualified for the position after all—the company called the plaintiff to discuss her availability for the position…and learned the plaintiff was paralyzed from the waist down.

Wheelchair, Disability, Injured, Disabled, Handicapped

Wanna guess how the call ended? Well, the company quickly ended the interview without asking about the plaintiff’s skills or relevant work experience and rejected her application. That one and three other subsequent applications by the same plaintiff.

The EEOC said “no way” to such conduct, and filed a lawsuit, Civil Action No. 3:17-cv-336-CWR-FKB, in U.S. District Court for the Southern District of Mississippi, Northern Division and then settled the matter for $50K as part of a two-year consent decree that included:

  • requiring the employer to provide training to its employees on its obligations under the law;
  • requiring review of the employer’s anti-discrimination policy as well as modification of the policy as necessary;
  • prohibiting the company from engag­ing in any discrimination or retaliation because of disability; and
  • requiring the company to post notices on its bulletin boards informing employees of their right to contact the EEOC if they feel they have been discriminated or retaliated against.

As my partner Rich Cohen said here,

In simple terms, the ADA defines a disability as a condition that impairs a major life function such as walking, breathing, taking care of oneself or working. The ADA prohibits discrimination against someone with a disability who can perform a job’s “essential functions,” and provides that an employer must make “reasonable accommodations” to the known physical or mental limitations of an otherwise qualified individual with a disability.

Employer Takeaway

Aside from treating people equally and according to their skills, qualifications, and relevant job experience, here are a few helpful tips about handling the hiring process so as not to discriminate against any applicant on the basis of disability:

  1. Don’t reject an applicant with a disability because the disability may prevent the person from performing minor duties that are not essential to the job;
  2. An employer can decline to hire a person if his or her disability poses a significant risk of substantial harm to the company or others. BUT, if this is a concern, the employer must seek appropriate information to assess the level of risk and the nature of the harm. This can include asking questions about prior work experience and requesting specific information from the applicant’s medical professional; and
  3. An employer cannot refuse to hire an applicant based on a slightly increased risk, speculation about future risk, or generalizations about an applicant’s disability (sounds like stereotyping, no?). Instead, the employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.

You can read other facts about hiring persons with disabilities in the EEOC’s fact section about applicants and the ADA here. As the EEOC attorney involved in this case said, and I’m paraphrasing here, an applicant deserves to be judged on his or abilities, rather than a disability.

Subscribe to Blog via Email

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 129 other subscribers

Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.